Looking for an early upset? Look, it's in mining

If there is one thing that many Romblon politicians lack, it's the ability to think.

Thinking--hard thinking--is a rare trait, and those imbued with the ability to think often have the powers of imagination at their disposal. And imagination, when used properly by a leader, could lead to rational decisions.

One does not need to be a rocket scientist to figure this out.

On 17 January 2013, Judge Ramiro Geronimo issued a resolution striking out as unconstitutional Executive Order No. 1, Series of 2011 issued by Gov. Eduardo C. Firmalo.

The resolution arose from a special civil case filed by Sibuyan Nickel Properties Development Corporation against Romblon Governor Eduardo C. Firmalo, San Fernando Mayor Dindo C. Rios, Vice Governor Mel Madrid, and several other provincial and municipal officials seeking declaratory relief and praying for a temporary restraining order on the controversial order which imposes a moratorium on mining in the province of Romblon.

By all indication, the resolution was well-thought out, anchored as it was on the basis of law. I, therefore, salute Judge Geronimo for swimming against public opinion and issuing the resolution, thereby putting into the right frame the lingering debate in the province on whether to allow mining or not.

Before the vociferous and the non-thinkers scream, "Hey, Nicon, you are for mining!" and throw me the kitchen sink, let me just say this: "I think."

I think that Judge Geronimo's resolution cuts through the garbage in the mining debate and sheds light--not on mining per se--but on how government leaders should behave and think rationally, sensibly, when faced with grave issues that affect communities, like mining.

You may ask: "And how's that, 'Hagong it Buhi'?

Well, for one, Judge Geronimo said that as governor, Firmalo "cannot validly issue a moratorium prohibiting all forms of metallic mining in the entire province of Romblon".

To back up this declaration, Geronimo (aside: Geronimo is the title of a Lito Lapid movie, the star of which was himself as a slick gunslinger), used plenty of ammunition, the most potent of which was the Constitution.

"The 1987 Constitution," Judge Geronimo wrote, "does not prohibit mining." On the contrary, it ordains it, he said, citing Section 2 of Article XII of the basic law.

Geronimo said the contention that Joint Resolution No. 01, S. 2011, was regulatory and prohibitive is offensive to the Constitution, considering that Firmalo's order places legal mining on the same plane with illegal mining for an indefinite period.

The judge also said Firmalo's order is an ultra vires act. Ultra vires is a Latin term which means "beyond the powers", a doctrine in corporate law holding that if a corporation enters into a contract beyond the scope of its corporate powers, the contract is illegal. He was succinct in saying that a careful reading of the order shows it does not seek to enforce or implement a law or ordinance because there is no law or ordinance that prohibits or suspends all forms of metallic mining.

Aside from the Constitution, the judge also cited the Local Government Code of 1991, Philippine Mining Act of 1995, R.A. 7942, and President Benigno S. Aquino III's Executive Order No. 97 to drive home the point that Gov. Firmalo acted "beyond his powers" when he issued his order.

An interesting point.

The judge said that the creation by Firmalo's order of a special task force to assess all pertinent mining applications, permits, and activities in the province is illegal because this function is vested in the Department of Environment and Natural Resources and the Mines and Geosciences Bureau.

"Local government units are merely expected to cooperate so that the environmental standards of mining laws, rules, and regulations are fully and strictly enforced," Geronimo chastised Firmalo.

I mentioned this because in a previous piece, I asked whether the provincial government, in the light of Firmalo's order, had already established such a special task force. I wanted then to know who are its members and whether they are doing their job or just sleeping comfortably in their hammocks in the capitol.

I also wanted to make sure that the members are not adding to the poste--all in all 14, I have been told, and still counting--already in place in Sibuyan standing in line to collect  regularly their share of protection money from the small-scale mining activities.

If my recollection is right, I think my friend Trina, the governor's chief of staff, said yes, indeed, there was already a special task force, although to this day, I haven't got a name of any one of them. Perhaps, they are horses with no names, as the title of America's hit song goes?

In sum, Judge Geronimo said local governments should only confine themselves to impose reasonable limitations on mining activities conducted within their territorial jurisdiction that are consistent with national laws and regulations--not to prohibit it for an indefinite period of time.

In his resolution, Geronimo also pin-pricked the toothless and less thought-out  Joint Resolution No. 01-10 and Joint Resolution 02-10 that prohibit mining and adopted by the Sangguniang Bayan of San Fernando, Cajidiocan, and Magdiwang.

The first joint resolution was addressed to the Secretary of the DENR, while the second was addressed to the President of the Philippines. All were supportive of Gov. Firmalo's executive order. All were declared by Judge Geronimo as not ordinances, and thus, have no effect whatsoever.

Another note.

It was only now, after reading Geronimo's resolution, that I found out the comic--bordering on the ridiculous--act of some of the members of the Sangguniang Panlalawigan, populated as of now by elected legislators, some of whom are not in my favorite list of thinking people.

In his resolution, the judge devoted a whole paragraph noting how the Sangguniang Panlalawigan waxed hot and cold on the issue.

On the same day that Firmalo issued his order, or on 10 January 2011, the provincial legislative body issued its own resolution, SP Resolution No. 01-2011-23, strongly supporting E.O. No. 1. The ink on this resolution has hardly dried up when the SP followed up with another resolution, SP Resolution No. 01-2011-24, requesting the provincial director of the Philippine National Police "to immediately coordinate with other law enforcement agencies and arrest the source of illegal mercury that is smuggled in the province".

Then, the SP suddenly changed course like the wind. In a matter of only half-a-month, or on 24 January 2011, the honorable members issued another resolution, SP Resolution 01-2011-41, withdrawing its strong support to Firmalo's order.

What happened? Perhaps, the SP members were visited by the spirit of their ancestors and, finding enlightenment by thinking, or illumined by wisdom or motivation other than light, acted they way they acted.

Still, it puzzles me no end. If it withdrew its support to the order, why did it not withdraw its request to the PNP provincial director? And relative to the request, why arrest only the source of illegal mercury? Why not arrest the smugglers and the consignees or users of the mercury themselves? What if the source of the illegal mercury is in the US? Or nearer, like Cobrador Island? And yes, is there legal mercury?

See what hard thinking could do? It could raise a lot of questions.

Finally, there is no doubt that Judge Geronimo's resolution was a bolt of lightning out of the blue, a set-back, a slap in the face of Romblon anti-mining activists and a triumph on the part of the miners.

The short-sighted and unthinking class may even read this as political and paint it as a preview of the impending clash in the May 13 election.

Looking for an upset? This is it. An upset, yes, but for those who care for Romblon's ecological balance, not for the politicians who can change their colors whenever it is favorable to their interest. Or if it threatens their survival.

I asked Awe Eranes what Gov. Firmalo's reaction was to the resolution. His answer was terse: "Malungkot, siyempre." (Sad, of course).

He should be. But this could not have happened if he only listened to the advice of those in the know, even to those who are steeped in the law, before hastily issuing the order.

Leadership--the transformative kind--requires a leader to think of the pros and cons of a certain course of action, to balance the causes and effects of a decision and their impact on the larger audience, and to see the larger picture, to distinguish the trees from the forest, so to speak, in an impassioned, detached way.

Alas, E.O. No. 1, S. 2011, was issued because of the heat of the moment, of the onrush of public opinion which is sometimes not the kindest kind and, therefore, not imbued with this perspective, Judge Geronimo so easily, coldly, rationally demolished the order.

We who are all against the mining rape of the province could learn a lesson or two from Odiongan Vice Mayor Brix Fajutnao's deep thinking on this matter. He said, after reading the resolution, that the issuance of the governor's order did not even benefit from a single public consultation.

I agree. Issuances of this kind, being of a very sensitive nature and having the force and effect of law, should have been subjected to a thorough study and analysis and to an extensive and expansive consultation with all affected stakeholders.

Even if it means paying for an expensive pump boat rent to Sibale--which many of the members of the Sangguniang Panlalawigan have not visited for three years--to consult with the Sibalenhons who have their own views to share on mining and other issues.